THARUR PANCHAYAT Vs. KUNCHAYI

JUDGEMENT

(1.) DEFENDANTS 1 to 3 are the appellants in this second appeal which arises out of a suit filed by the respondents for an injunction to restrain the appellants and another from interfering with a water chal described as item 2 in the plaint and from trespassing into the northern portion of item 1 and for a mandatory injunction for restoration of the chal to its original condition.

(2.) PLAINT item 1 belongs to the plaintiffs and they are in actual possession of the same besides other properties. Defendants 1 to 3, who are the appellants, are the President, Executive Officer and a Member of the Tharur Panchayat respectively, within whose limits the property is situated. It appears that a peon of the Panchayat is also impleaded as the 4th defendant in the suit. The panchayat had purchased the northern portion of item 1 for conducting a shandy. The plaintiffs have raised objection to the construction of a market place in that property as it would obstruct the flow of water to the plaintiffs' paddy field in item 1 through the vellachal in item 2. It is alleged in the plaint that on 15-8-1969 the defendants filled up a portion of the chal. The varichal runs along the northern side of item 1 also. It is contended in the plaint that the plaintiffs and their predecessors-in-interest have been using this water flowing through the chal concerned for irrigation of their properties for over 100 years without interruption peacefully and as of right and to the knowledge of all concerned. The suit was brought forward on the allegation that the defendants have no right to obstruct the same.

(3.) DEFENDANTS 1 to 3 had contended in the suit that there is no varivellachal on the western side of the property purchased by the panchayat as alleged in the plaint. Their case was that the property was purchased for the public need of constructing a market and as there is no chal in existence there is no question of any one tampering with the chal. It was contended that item 2 is an imaginary item, and the plaintiffs cannot claim as easement right over a nonexistent chal In the written statement the plaintiffs are put to strict proof of their claim to item 1.